This week, the Department of Labor released its final rule implementing the Family and Medical Leave Act amendments under the National Defense Authorization Act of 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA).  The final regulation also revises a handful of existing regulatory provisions, and removes the model FMLA forms from the appendices of the regulations.  I reported on these proposed changes in greater detail in a previous blog post last year.  The final rule takes effect March 8, 2013.

Military Family Leave

The new rules regarding military family leave are not controversial and effectively carry out the amendments made by the NDAA.

Caregiver Leave

As for caregiver leave, it now can be taken up to five years afterthe service member leaves the military and for an injury or illness that results from a condition that predates the individual’s active duty but that was exacerbated by the military service.  Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.

Qualifying Exigency

Prior to the NDAA’s enactment, exigency leave only was available to family members of Reserve and National Guard members, and not regular service members.  However, the NDAA and proposed regulations reverse that position.  FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members, so long as they are being deployed to a foreign country.  The final regulation also added and tweaked current qualifying exigencies:

  • Expands from five to 15 days the amount of “Rest and Recuperation” FMLA leave an eligible employee can take to spend with a covered family member; and
  • Creates a new category for parental care (caring for the servicemember’s parent when the parent is incapable of self-care)

Airline Flight Crew FMLA Leave

Enacted in 2009, AFCTCA closed an apparent loophole in the “hours worked” eligibility requirements for airline pilots and flight attendants whose unique schedules often left them short of the hours required to qualify them for FMLA leave. Under the FMLA, employees must work at least 1,250 hours in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek.

AFCTCA applies the same concept to airline flight crews, providing that the hours flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.  Under AFCTCA and the FMLA regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months. This calculation does not include personal commute time, or time spent on vacation, medical or sick leave.  The changes will result in more employees who are eligible for FMLA leave.

The final rule also includes:

  • Listing of all special requirements applicable only to airline flight crew employees and their employers (subpart H);
  • Adoption of a uniform entitlement for airline flight crew employees of 72 days of leave per applicable leave year for one or more FMLA-qualifying reason and 156 days of military caregiver leave; and
  • Imposition of special recordkeeping requirements on employers of airline flight crew employees.

Other Notable Changes (or Non-Changes!)

Physical Impossibility

Although the DOL appeared poised to make changes to the “physical impossibility rule,” it simply reminded employers that this rule is to be applied in only the most limited circumstances, and that the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.  Notably, the DOL shared the following in its Fact Sheet 28I on the issue:

In a situation where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work mid-way through a shift, the entire period the employee must be absent is designated as FMLA-protected leave and counts against the employee’s FMLA entitlement. The period of the physical impossibility is limited to the period when the employer is unable to permit the employee to work prior to a period of FMLA leave or return the employee to the same or equivalent position after a period of FMLA leave due to the physical impossibility. This rule applies only to situations where it is truly physically impossible to return the employee to work after an FMLA-qualifying absence, for example, a railroad conductor whose FMLA leave prevents him from boarding the train before it leaves for its scheduled trip.

Increments of Leave

The DOL maintained a provision that allows employers to use varying increments of leave at different times of the work day or shift.  It reaffirmed the current rule that employers “must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour.”

DOL’s Model FMLA Forms

Notably, the WHD removed its model FMLA forms from the regulations’ appendices.  Employers may now locate the optional-use forms on the DOL website.  This change was made so that DOL has the flexibility to change (and hopefully, improve) the forms as needed without getting bogged down in the regulatory approval process.  DOL remarked that any future substantive changes to the forms will remain subject to normal notice and comment.


More information regarding the rule, including a side-by-side comparison of the new rule with the prior version, frequently asked questions and a fact sheet, is available on the DOL’s website.

Photo credit: U.S. Department of Labor